The Sixth Circuit Lets A Jury Hear About The Accident of Federal Jurisdiction In A Michigan Swamp Murder

Our federal death penalty is incoherent policy. Death penalty cases are expensive, incredibly time consuming, and, in light of how in the federal system life really does mean life, pointless.

Right now, the First Circuit is considering whether the governor of Rhode Island has to hand over a man serving a life sentence in that state.

The federal government wants to prosecute him federally, for no reason other than to kill him – he’s already serving a life sentence. Rhode Island doesn’t have a death penalty, and thinks that it can adequately handle this relatively routine murder case without federal intervention.

What good does a federal prosecution do? Why does the government want to spend more than a million dollars in this economic environment just to get another notch on its belt? Excellent questions that I don’t know the answer to.

The legal question in Rhode Island is tricky, and it isn’t clear the governor will win this one. I’m looking forward to seeing the national debt increased by the cost of this prosecution. Others are excited about this too.

Yet another example of how our federal death penalty policy makes no sense can be found in the United States Court of Appeals for the Sixth Circuit’s opinion in United States v. Gabrion.

Mr. Gabrion was convicted of killing a woman and her infant child. He had been accused of raping her, and was facing trial on that allegation. To prevent her from testifying, he killed her in a swamp in a national forest.

Lines in the Swampland

He was charged federally with that murder because the murder happened in a national forest. Indeed, her body was found 227 feet into the park – had he been 227 feet north when he killed her, he would have been in a park run by the State of Michigan and there would have been no federal jurisdiction for the charge.

If there’s no federal jurisdiction, there’s no possibility of the death penalty.

An Oddly Important Accident

Mr. Gabrion’s lawyer thought this was an odd coincidence of location. Less than a football field’s difference in a swampland and the man couldn’t be put to death by his government. He thought that decisions about who lives and who dies should not be made on such an arbitrary basis.

Making this accident of location worse, Michigan is the only state in our Union that has a provision in its state constitution that prevents it from imposing the death penalty. Capital punishment has been illegal in Michigan since 1846. Michigan is a seriously anti-death penalty state.

How Death Is Imposed

Death is different, and death penalty cases are handled differently than other cases in a number of ways. One way is that a jury decides first whether the person is guilty and, only if they find guilty, do they decide whether the death penalty should be imposed.

To guide their decision Congress requires the jurors to look at things that mitigate the person’s conduct and that aggravate it. The mitigators are:

Impaired capacity

Duress

Minor participation

Equally culpable defendants

No prior criminal record

Disturbance

Victim’s consent

Or, finally, “other factors.”

Importantly, the statute requires juries to consider “any mitigating factor.” 18 U.S.C. S 3592(a). (Realizing these factors are sometimes a little opaque, you might want to check out the statute – it elaborates on them a bit).

The District Court Holds That “Any” Means “Not Any”

Mr. Gabrion’s lawyer argued that he should be able to argue to the Michigan jury that the federal government was trying to kill someone because they were less than a football-field’s distance inside federal land. He wasn’t saying it meant Mr. Gabrion couldn’t be killed – just that it’s something the jury was allowed to consider when it made the decision about whether to impose death.

The district court said no. The “any mitigating factor” language was, in essence, not expansive enough to include this mitigating factor.

Mr. Gabrion was sentenced to death.*

The Sixth Circuit Holds That “Any” Means “Any”

The Sixth Circuit reversed, holding in part that there can be no limit on what a jury should consider. Quoting another court, the court of appeals said “There is no qualification or limitation other than the factor “mitigate” against a sentence of death.”

So, for death counsel, it’s now permissible to argue that it’s wrong for the federal government to assert jurisdiction just to try to kill someone, at least in the Sixth Circuit.

* To be clear, there is a lot more going on in this opinion, and in Mr. Gabrion’s case, than this federal jurisdiction issue. For one thing, Mr. Gabrion seems like kind of a jerk. He punched his lawyer during the proceedings and, according to the court of appeals, faked being crazy.